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Friday, October 31, 2014

David Cameron and George Osborne might be forgiven for thinking that when it comes the EU budget, it never rains, it pours. Fresh on the heels of the Commission's explosive demand for an extra £1.7bn for this year's EU budget, the ONS' annual Pink Book published this morning has revealed that the UK's contribution last year stood at a whopping £11.27bn - much higher than the £8.6bn the Treasury had forecast (see page 14 of this HMT document) and a 32% increase on 2012.

There are a number of reasons why there is such a large discrepancy:

Partly this can be accounted for by the €11.2bn that was retroactively added onto the EU budget late last year (one of the European Parliament's conditions for swallowing the cut to the EU's long-term budget for 2014-2020). In addition, the growth of the UK's economy resulted in an adjustment and increase of £781m to the UK's contribution (-£190m via a separate VAT adjustment) - the same mechanism partially responsible for the £1.7bn demand.

Due to its strong economic growth relative to other EU member states, a situation which looks set to continue in the near future, we also warned that the UK faced an 'EU stealth tax' via higher GNI, VAT and customs contributions.

We warned last year following the landmark budget cut that the UK might yet end up paying more in net terms due to Tony Blair's rebate cut and a larger share of EU funding going to new member states but the latest developments (the surcharge + stronger relative economic performance) risk pushing this up even higher.

Needless to say, this will only crank up the pressure on the government which is already in a difficult position vis-a-vis the EU budget, EU free movement and the European Arrest Warrant and will make it even harder for David Cameron to give any ground on the £1.7bn surcharge.

Thursday, October 30, 2014

Update 11.50 30/10/14:Reuters is reporting that an EU spokesperson has said a deal is "very close" and talks will continue today, as we note below. As we also say below, a deal is still doable and likely, the question remains whether any form of EU payment guarantee will be needed and if this can get sufficient support within the broader EU member states.

Earlier in the year the halting of gas supply between Russia and Ukraine (for Ukraine’s own use at least) was not seen as too big of an issue and it was hoped Ukraine would be able to leverage the combination of economic pain from sanctions and the Russian government’s reliance on commodities exports for funding to secure a relatively favourable deal. However, on the cusp of the harsh Ukrainian winter the power balance has steadily shifted and Russia has continued to hold firm and even broadened its demands.

What has been agreed so far?
Quite significant progress has actually been made compared to the starting point:

Ukraine has agreed to pay for previous gas supply at a price of $268.5 per thousand cubic metres. This means $1.45bn will be paid by the end of October and $1.65bn ($3.1bn total) by the end of the year. Ukraine’s Naftogaz has set aside $3.2bn in an escrow account to pay for this.

Going forward Ukraine will prepay on a monthly basis for its gas this winter at a price of $385 per thousand cubic metres. Russia has agreed to pay transit costs.

Russia has clearly shifted from its original price demand (at least with regards to back dated payments), but Ukraine has also compromised by agreeing to prepay and pay off existing debts.

What are the key sticking points?
There is really only one, but it’s a biggie. While Ukraine has proven that it can afford to pay off its existing debts there is much less certainty about its ability to prepay going forward.

We have noted before the significant downward spiral in the Ukrainian economy. While the fighting has calmed down to an extent, things are still far from normal, not least because the conflict has become frozen in the East with part of the country still de facto cut off.

Ukraine is now totally reliant on external funding from the EU and IMF. As we have seen in the Eurozone crisis the release of such funding is often more complicated than expected and creates a staggered cash flow linked to economic reforms. Such reforms should pick up following the election but remain tricky to implement in a country caught in the proverbial no man’s land in the sanctions war between Russia and the EU.

For these reasons Russia has continued to demand some form of explicit guarantee from the EU that Ukraine will be able to pay for the supplies over the winter – they are expected to cost around $1.6bn, though this could increase if the winter is particularly harsh.

Is a deal likely?
It’s looking difficult as this meeting was earmarked as the most likely one for a deal. Russia seems to be using this arena to flex its muscles given that it believes it has the upper hand. That said, the economic costs of sanctions and a falling oil price are creating problems for the Russian economy, though it’s not always clear whether economic logic is sufficient to alter Russian President Vladimir Putin’s position.

Getting explicit EU support for around $2bn to guarantee prepayment would be difficult. But, so far, the EU has been fairly supportive of Ukraine and may be willing to offer a more tacit agreement to provide further funding rather than outright underwriting of the payments. Furthermore, without a deal there will be a huge temptation for Ukraine to siphon off gas which it is transiting from Russia to Europe. This could cause Russia to halt all gas flow through Russia, something Europe is keen to avoid to say the least.

Talks are set to resume later today according to RIA Novosti. With all this in mind, and the fact that a deal remains in all sides' interests, we would think one could still be struck.

What are the lessons here?
Ultimately, this dispute is teasing out a key question for the EU in the wake of this crisis. It is becoming increasingly clear that Ukraine is economically devastated in the wake of the war and the sanctions. The offer of opening up markets in the EU is unlikely to be sufficient and the EU and IMF will have to face up to the fact that in the short and medium term they will probably have to offer significant amounts of cash to Ukraine to help stabilise its economy, currency and energy supply.

Putin is aware of how politically sensitive this is for the EU – it has just gone through a series of its own bailouts in the Eurozone crisis and now countries are being asked to stump up cash for a country which is not even a member (and is unlikely to be one for the foreseeable future, if ever). As with the sanctions, this narrative is likely to expose dividing lines within the EU and set the tone for the negotiations over the future of Ukraine.

Wednesday, October 29, 2014

The European Commission has given France and Italy a preliminary nod through on their draft budgets for 2015. In a statement released yesterday evening, Commission Vice-President Jyrki Katainen said:

"After taking into account all of the further information and improvements communicated to us in recent days, I cannot immediately identify cases of 'particularly serious non-compliance' which would oblige us to consider a negative opinion at this stage in the process."

An outright rejection of the French and Italian budget plans was always unlikely, as it was in no-one's interest to trigger an almighty row involving the second and third largest Eurozone economies. However, doing nothing was also never really an option for the Commission. Had it let France and Italy get away with draft budgets that were not only clearly deviating from their deficit reduction commitments but also not even acting to try and meet them, the credibility of EU fiscal rules - already wafer-thin - would have been shattered.

Over the past few days, both France and Italy pledged to make additional cuts to those initially planned for next year. Therefore, at least in terms of political narrative, the Commission got the upper hand in this first round. It stood up for budget consolidation, and it made its demand for extra efforts heard in Paris and Rome. On the other hand, for all their anti-austerity bluster, French President François Hollande and Italian Prime Minister Matteo Renzi are likely to come across as eventually bending to the will of Brussels.

That said, this is by no means the end of the story. The measures proposed by France and Italy to achieve the extra deficit reductions look far from structural. Also, as the FT notes, the changes are still short of what the Commission demanded and remain vaguely defined:

In his letter to Katainen, French Finance Minister Michel Sapin mentions the lower interest rates on French debt, the lower contribution to the EU budget recently announced by the Commission (we have written extensively on this issue, see here and here), and a strengthening of the fight against tax evasion.

Similarly, his Italian counterpart Pier Carlo Padoan said he would use a €3.3 billion tesoretto (literally 'little treasure', but basically a reserve fund), originally set aside to lower the tax burden in 2015, to reduce deficit instead. However, there seems to be no guarantee that Italy will be able to find the same amount of money every year.

The Commission will issue its final verdict on the draft 2015 budgets of all Eurozone countries by the end of November. We would expect the Commission to come up with a set of stringent recommendations for France and Italy, although an entirely negative opinion looks unlikely. In the end, we may well see a replay of the current discussion. In the meantime, as the contrasting headlines from the New York Times today show, some may struggle to discern who exactly capitulated...

The print version and online version of the New York Times today struggle to judge who blinked first...

Tuesday, October 28, 2014

Cameron has promised to invoke the spirit of Thatcher over the EU budget

As EU leaders were agreeing the final details of the EU's new energy and climate change policies on Thursday evening, the FT's Alex Barker dropped the bombshell that the UK had been asked by the Commission to pay an extra £1.7bn surcharge into this year's EU budget. It was clear Cameron had not been expecting this and he angrily accused the Commission of a stitch-up, and refused to pay by the December 1 deadline.

By now, several explanation pieces have been published but there is still some confusion so here is one more try from us to clarify the situation:

Where did the demand come from?

There are effectively two things going on here, lumped together: the standard, annual revision of national contributions to the EU budget, and a one-off recalibration of the way in which national statistics authorities measure the size of their economies, going back several years. It is the combination of the two that have created a “perfect storm” for the UK:

1) Annual adjustment: Every year the EU member states and Commission work out respective national contributions to the following year's EU budget, once the actual economic data for the year in question is available. Member states' contributions can be revised upwards or downwards based on the performance of their economies. EU rules state that:

"The Commission shall inform the Member States of these adjustments in time for them to enter them in the account... on the first working day of December of the same year."

As David Cameron has rightly pointed out, these revisions are usually minor and therefore uncontroversial.

2) Changing the way the size of the economy is measured: Eurostat – the EU’s statistical body – recently reviewed the way in which member states auditing the way in which EU member states assess the size of their economies, concluding that under agreed EU rules (ESA95), several countries haven’t estimated their economies properly dating all the way back to 2002 (1995 in the case of Greece). In 2012, Eurostat instructed member states’ authorities to re-assess the figures – and to do so before 2014 . The ONS published its revised figures in May 2014, which among other re-valued the size and contribution of the UK's charity sector, which meant that overall. the UK economy was larger than previously thought, and had therefore been underpaying towards the EU.

The large UK bill is therefore primarily due to the one-off revision applied retroactively over 12 years, though effectively rolled in with the far less controversial annual adjustment. This is where a lot of the confusion comes from.

Who knew what when – and who is at fault?

This is what the debate has now shifted to, and there is a fair amount of blame to go around; no one really had their political radar switched on.

The European Commission: People within DG Budget (the Commission’s budget department) were briefing media on Thursday and well into Friday that the changes was due to the introduction of ESA10 – basically drugs and prostitution, something which left most people perplexed, and helped to fuel confusion and outrage.

It was also clear that the politics of the hefty bill would be lethal. Of course, Commission officials can claim the robot defense that “we are only following the rules”, but the Commission has always been a hybrid between an executive and a bureaucracy – so it should have handled this with far more care (the December 1 deadline was an over-kill), although some of this can be forgiven given that we’re between two Commissions.

The UK government: The exact figures were presented on Friday a week and half ago, a week before the EU summit. But it’s been clear since May this year that the UK economy was larger than expected following the ONS' revisions – indeed, the UK government itself triumphantly pointed this out. It’s also been clear for some time that other key countries were going to revise their figures. So while no one knew the full picture until 1 ½ week ago, different parts of the Government, including the Treasury, knew earlier a higher bill would be coming, albeit not the exact size. Perhaps the Government hoped this could have been snuck through somehow.

David Cameron: Probably hadn't been briefed until just before the EU summit but chose to adopt a very tough position, leaving himself limited room for manoeuvre. Some say this is a manufactured row to distract from other pressing EU issues like the European Arrest Warrant and EU free movement – a convenient row in which Cameron can ‘stand up to Brussels’ and claim some sort of success. We very much doubt it however,

What are Cameron’s options?

Cameron has effectively promised not to pay by 1 December and not to pay a bill “anywhere near” the £1.7bn mark – he restated that position yesterday in the Commons. So it’ll be hard for him to climb down. At the same time, the annual adjustment is supposed to be automatic – not subject to a separate vote – and the new calculations have already effectively been signed off by the ONS, so Cameron’s practical options are limited:

Rally a coalition to block the change: As a result of the extra €9.528bn that the EU will get due to the revisions, it is cutting the budget by €9.948bn - a net cut of €420m, and the Commission has tabled a draft amending budget to implement these changes. This budget will be subject to a vote among member states and as we set out here, the UK and other net losers have a blocking minority. However, rejecting the amending budget would mean the UK actually paying more (€3.6bn as opposed to €2.1bn), but the flipside would be that almost every member state would pay more too - rather than a €1bn rebate for France and a €779m one for Germany, they would face bills of €562bn and €1.4bn respectively - this could give the UK some leverage, although it could also backfire.

Seek revision of figures: Cameron has said he will launch an "exhaustive" review into the methodology that was used, effectively challenging the basis for the calculations. The figures aren't exactly transparent – and maybe this process will expose something they can run with and muster political support around. It's complicated by the fact that the ONS itself signed off on the underlying figures.

Unilaterally revise the figures: The UK could check if the ONS went further then it needed to in revising past economic performance under ESA95, and if so, revise its figures again.

Go to court: It is not clear whether the UK would have any grounds for taking the Commission to the ECJ but one potential avenue would be to challenge the retroactive aspect of the bill as well as its unprecedented nature. Either way, it could bog down the process and buy Cameron some much needed breathing space in which to work on alternatives.

Refuse to pay: That could well trigger a crisis However, and the worst-case scenario is that the UK will face potential fines and infraction (see here for the figures).

Veto unrelated EU measures: It has been suggested that the UK could play hardball by vetoing other EU measures such as changes needed for the Eurozone to integrate further- but there are no such measures imminent over which the UK has a veto.

Ultimately, because the money is not needed for the 2014 budget per se, the issue could be kicked into the long grass, allowing for a face-saving compromise to be agreed. Speaking in the Commons yesterday Cameron sounded pretty confident that something can be done. We hope he’s right.

Monday, October 27, 2014

On this blog, we have been tracking Podemos, Spain's six-month-old anti-establishment party, since its very first success in the European Parliament elections in May - when the party came from nowhere to secure five MEPs (see here and here).

The rise of Podemos has continued since. According to a new poll released by Tele Cinco yesterday, the party led by Pablo Iglesias would finish second in a general election with 24.1% of votes - behind Prime Minister Mariano Rajoy's Partido Popular (on 28.3%) but ahead of the Socialist Party (on 23.7%).

Podemos was only officially registered as a political party in March and is already polling as Spain's second most popular party. This is absolutely extraordinary in itself, but this second graph is even more interesting:

Essentially, this poll suggests we may be looking at the following two post-election scenarios:

A strongly anti-austerity left-wing coalition including the Socialist Party, Podemos and the United Left (53% of votes in total in this specific poll).

An unusual 'grand coalition' between the centre-right Partido Popular and the Socialist Party, an option which we discussed here.

The new Socialist leader Pedro Sánchez has so far ruled out joining forces with either Partido Popular or Podemos, but the next Spanish general election is still a year away - so things may well change. Opinion polls can certainly be wrong, but as we noted in our previous blog posts, the steady rise of Podemos should not necessarily come as a surprise. There was a gap in the market, so to say. Spain, the country that had given birth to the indignados movement, had no real anti-establishment party.

Now that Podemos has entered stage and is consistently polling well, traditional parties may be forced to engage with its arguments. At the same time, we would expect Podemos to come under greater scrutiny and pressure as Spaniards begin to contemplate its role as an opposition party or even as a member of a governing coalition.

David Cameron has taken a very tough position on the EU budget surcharge, claiming that he "won't pay" the £1.7bn the Commission has demanded from the UK by December 1 after concluding the UK had been underpaying into the budget relative to the size of its economy. Other countries have also been hit - so how much support does Cameron have around Europe?

These changes which again are due to recalibration in the way the size of economies are calculated (more on this later) are being tagged on to the annual "adjustment" to the EU budget, which is basically normal procedure.

However, this also means that EU leaders will have to agree to an "amending budget" via a decision taken by Qualified Majority Voting. This also means that the UK might have some chance of "blocking" the change if it can get other allies on board.

Below is the voting balance, if all "net losers" are clubbed together under QMV.

However, not all the other member states affected have been as firm as Cameron. The Dutch have appeared to soften their stance with Dutch Finance Minister Jeroen Dijsselbloem stating on Dutch TV yesterday that the Netherlands would pay its €642m surcharge "if the facts and figures are correct". Irish Taoiseach Enda Kenny said his Government will pay the additional bill, adding that “we have always abided by the rules”, while Maltese Prime Minister Joseph Muscat claimed that:

“Malta is not surprised that the EU has asked for this top-up… but we are still seeking clarifications on how the [Commission] calculated this figure”.

Italian Europe Minister Sandro Gozi said that:

“An in-depth examination is needed… we will see whether it will be really necessary to apply the new method to calculate [national] contributions. In any case, this doesn’t imply an immediate payment.”

So hardly an endorsement of the UK's tough position, but there may be enough support for a delay or some alternative arrangement such as paying the surcharges in installments. Meanwhile, Cameron did at least get some support from an unexpected source... France (which has received a €1bn rebate). The Telegraph cites former French Europe Minister Pierre Lellouche as saying that:

"I think it's ludicrous to actually go and punish the one country that has suffered the reform. The results are showing up now - the unemployment rate has gone down to half what it is in France. The growth rate is four times what it is in France - and we go and punish the British? It's madness".

In Britain, “Europe” as a political issue has pretty much gone mad over the last few weeks. There has been a lot of rhetoric, but where are we in terms of substance?

Free movement: When asked about reports in UK media that David Cameron is considering proposing quotas for EU migrants, Angela Merkel told the Sunday Times: “Germany will not tamper with the fundamental principles of free movement in the EU”. This has always been the German position (Wolfgang Schäuble today echoed those comments). She added, “I spoke to David Cameron and we agreed to assess the [the upcoming ECJ verdict on EU migrants’ access to benefits] together. These are controversial issues that are debated also in our country. I am of the opinion that they need to be resolved in a way that tackles abuse.”

Hot potato factor: Medium to high.
As we’ve always said, changes to the EU’s “fairness” regime – who can access what benefits and when – is fully possible. Caps will be much trickier. Yes, the politics around EU free movement have become massively complicated, with Tory politicians seemingly talking up the need to cap numbers – even though we may sense a bit of back-peddling on the more aggressive rhetoric (Michael Fallon’s comments notwithstanding). Remember, we have not yet seen a concrete proposal from No 10 and in terms of the basic positions in Europe, Cameron’s chances of achieving reform in this area are very much unchanged. This remains a moving target though and much can happen.

European Arrest Warrant and the “block” opt-in: This is the decision by the Coalition government to take advantage of a quirk in the Lisbon Treaty which allows the UK top opt out of around 130 EU police and crime measures, and then choose to opt back in to all, some or none of these measures, which means accepting ECJ jurisdiction over these laws. The opt out will take effect on 1 December – but the Coalition wants the Commons to vote to opt back into a package of 33 laws, including the controversial European Arrest Warrant.

Hot potato factor: Medium.
Up to 100 Tory MPs have said they want to rebel and vote against opting in to the EAW. This is a debate that has been going on for some time and the big question was always how many MPs would vote against opting back in to the EAW. Theresa May and Michael Gove are now trying to minimise the rebellion and Lib Dem and Labour MPs will vote with the Tory leadership so the measure will almost certainly pass.

The £1.7bn cash demand: Due to changes to the way the size of the economy is calculated (ESA 95 NOT ESA 10), the European Commission has asked the UK to cough up another £1.7bn by 1 December – freakily coinciding with the bloc opt-in deadline. Cameron has vowed not to pay the money by then.

Hot potato factor: Off the charts.
This is simply shocking. From the DG Budget people within the Commission not being able to explain where the changes come from – in fact briefing media the wrong information (out of ignorance not spin) – to officials in Brussels, London and elsewhere not getting the political explosiveness of the issue to Cameron seemingly being taken completely by surprise. Depending on how this ends, it has the potential to go down in history as one of the most mismanaged episodes in the EU, ever. Cameron can hardly pay up by December 1, but it’s also not clear whether he can block it (the decision will be taken by a qualified majority vote – see upcoming blog post), meaning that without a face-saving gesture - which, given the stakes, is still fully possible - the stage is set for a proper political crisis.

This is a new development, and in the short-term, far more unpredictable than the block opt-in or free movement debate.

Cameron will update the House of Commons today – it could be a long afternoon.

Friday, October 24, 2014

Update 24/10/14 17.05:
Outgoing Commission President Jose Manuel Barroso has just given his press conference which frankly did not clear much up. Barroso insisted, as the Dutch position below does, that this payment demand is part of an annual adjustment which is based off of the revised figures for annual GNI (which are produced by national statistics agencies and then verified by eurostat).

Essentially, he is suggesting that the final figures for the UK in 2013 proved to be so far ahead of expectations that they altered the UK's share of the budget significantly.

This is not a completely implausible scenario but it leaves some glaring gaps. Firstly, its hard to imagine the economy outperformed so much and other EU economies underperfomed so significantly that the UK has to stump up another €2.1bn. Secondly, this doesn't fit with the leaked doc from the FT. As discussed below, the figures clearly seem to relate to a longer term assessment based off the ESA changes to the way GNI is calculated.

All that said, its becoming increasingly clear that the positions of the Commission, UK and others are not quite compatible so something will have to give in a negotiation.

***********************************************************

Currently, there is still no clear explanation for where the demand for increased contributions to the EU budget came from or exactly how it was calculated - see our comprehensive analysis here. While the Dutch and the Brits are both concerned about being asked to contribute more, they are actually putting slightly different versions of events forward. These two split the prevailing theories about how this has come about.

The first version of events, pushed by the Dutch, suggests that this is not as surprising has been made out since it is actually down to the regular assessment of the four cycle of VAT receipts and tax returns related to GDP of countries. When asked by Dutch BNR radio ‘Does this revision have anything to do with the new accounting method?’, Dutch Finance Minister Jeroen Dijsselbloem responded,

“No, this seems to come from a [annual] source revision which is something different from the statistical method that is used to calculate [the GDP].”

The point that surprised the Dutch was that the demand came out at almost double what they had forecast and there is no clear explanation of why this is.

The other version of events ties into the document leaked by the FT. Judging by this document it is hard not to see this cost as a result of a calculation based off the introduction of the new European System of Accounts 2010. The UK is suggesting it was unaware of such a significant overhaul to the EU budget calculations and has not been included in the discussion around the changes. The document clearly looks to alter the budget contributions over the period between the introduction of the previous system of accounts and the end of 2013. The total figures also line up with the reports and are yet to be rejected or even disputed by anyone. The fact the figures are so large also fits more with this version of events than the regular adjustment - in this sense something will have to give (size of demand primarily) for the first version of events to be true.

What do they agree on?

There is clear agreement that this has been handled poorly by the Commission, who is still yet to provide any clarity into the debate or explain exactly how much they are asking for and why.

Furthermore, the demand for payment immediately also seems to be a miscalculation by the Commission which caught some unawares at least in terms of the size, if not the timing.

While this may seem trivial it is vitally important that the Commission makes clear and gets to the bottom of what is going on here. Ultimately, Cameron’s options will be very different depending on whether the demand is driven by a unique one off event (such as long terms GDP changes) or part of a regular assessment of the EU budget. In any case, whatever the source serious questions need to be asked about how a bill of €2.1bn can materialise with little or no political discussion.

There are a number of headlines today around the EU’s request for a further €2.1bn from the UK in terms of its contribution to the EU’s budget.

Below we breakdown exactly how and why this has happened and what options the UK has now.

How has this happened?

The European Commission has launched a review of EU budget shares (based of VAT receipts and Gross National Income [GNI]) going back to 1995.

This is tied in with the introduction of the new European System of Accounts (ESA) 2010 which came into force in September. This is a new approach to assess the true value of a country’s economy (its GDP) by counting some activities which are often missed. Many of you will have read the countless headlines about how GDP will now try to quantify the value of prostitution and the drug trade. However, the new calculations also give more weight to research & development and other softer types of investment. The Commission has estimated that these adjustments will push most member states GDP up, albeit by varying degrees.

Essentially, since 1995 the UK has performed better than expected and better than many of the other EU member states. As such its economy is larger than originally thought. Under the review this means that its share of the EU budget – which is calculated off the back of GDP and population as a share of overall EU GDP and population – has increased.

The EU is also in the process of producing an amendment to the annual budget which we discussed here. At some point, very recently, the EU has decided to almost combine the two issues possibly causing a speed up in the payment date for this €2.1bn lump sum.

Why has everyone been caught off guard?

While the annual amendments to the budget are expected and usual (though often unnecessary and far too high as we have pointed out numerous times) this adjustment on GDP terms is unprecedented and seems to be largely a one off – as such it has caught most people off guard.

It also seems that the release has been kept under wraps for some time. While the amending budget has been known and discussed for some time, with the final details circulated to member states a week ago in preparation for the current EU summit, the details of this were only released to member states a day ago. Essentially it was somewhat sprung on them ahead of the summit.

This is exacerbated by the fact that this is clearly an extensive long term process and that the ESA 2010 adjustment has been running for years. To say the release and interaction with member states on this issue has been poorly handled would be a massive understatement.

What are the UK’s options now?

First, it’s clear the UK is not alone in its outrage. The Netherlands has been asked to pay in a further €640m, while Italy has been asked for €340m. Dutch Prime Minister Mark Rutte has called this “an unpleasant surprise which raises a lot of questions”, adding, “when I say go to the bottom of this, it means to look at all aspects, including legal ones. It is still too early to run ahead on this.”

The first option is to get an agreement to deduct any payments from future budget contributions. This would avoid having to pay in a lump sum now and also mean that it on net the UK does not pay any extra.

The second option would be to secure a political or legal agree to ignore these uprated GDP shares and stick with the originals. This should be doable through a vote in the European Council. That said, because some members are getting a rebate – France and Germany in particular – this could prove a very tricky agreement to strike.

As Rutte has already pointed out, countries may have legal recourse. Exactly what form this could take is unknown but the retroactive nature of the cost and its lack of discussion and warning could provide some grounds.

Lastly, the UK (and the Netherlands) could simply refuse to pay. As large net contributors to the EU budget, there is little that others can do to force them to pay. Obviously the EU could launch its own legal action in terms of infraction proceedings; however, the maximum fine for the UK is around €225m on an annual basis – much less than it is being asked to stump up here. This could also be combined with the point above, with the UK refusing to pay until the legal proceedings have run their course. ***see update below***

Open Europe’s take
While this does not necessarily seem to be a political stitch up from the EU there is no doubt that it is unreasonable and politically irresponsible. Retroactively taxing someone over 20 years is fundamentally unfair. The fact that the UK and Netherlands are being punished for doing better than expected and better than others almost encapsulates everything that is wrong with the EU’s approach – particularly when the Eurozone economy is struggling to find any growth.

Once again the EU has failed to learn any lessons from the previous budget negotiations and has helped to feed those who want to leave the EU, possibly ultimately shooting itself in the foot. Still, what's interesting is that in a debate marred by splits, the UK political class is almost entirely united in its outrage against this move. It is ironic that in the week when one poll found British support for EU membership at its highest since 1991, the Commission has managed to unite everyone from Lib Dem MEPs to UKIP in outrage. If Cameron manages to resist the demand somehow, he would be able to score a massive victory.

Update 24/10/14 12:05:
One point to add regarding the refusing to pay option and the potential fines. On top of the potential fine from infraction proceedings mentioned above, the amount of €2.1bn will be charged 2.5% interest (standard 2% above the Bank of England base rate currently 0.5%), which increases by 0.25% for every additional month which the outstanding amount is not paid off. Such interest could clearly mount up very quickly and become very expensive. If the UK is eventually forced to accept £2.1bn figure, then it could clearly turn out to be very costly. Ultimately, though, if the UK is prepared to play hard ball, it would lead to a stand-off that will would need to be resolved by a political negotiation. Such disputes rarely reach such escalated levels and resolutions are normally found before costs mount up.

Thursday, October 23, 2014

EU leaders are meeting today in Brussels to discuss the EU’s 2030 energy, environment and climate change framework which will likely involve some new targets for emissions reduction. You can find our full thoughts on the original Commission proposal here – but broadly we think that the more flexible structure is a good approach and that dropping the binding renewables target is the right approach.

1. A global deal – Without this the net benefits of the EU’s approach fall from over €200bn to between -€11.4bn and -€20.6bn.2. Emissions targets will lead to lower emissions – while the UK’s domestic carbon emissions have stabilised or even fallen slightly, its overall consumption of carbon has risen (save for a drop during the financial crisis). 3. UK’s targets are achievable – Recent simulations for the European Commission suggest the UK will fall 4% short of its target of 15% of energy from renewable sources by 2020.

4. Technological developments will cut cost of renewables – renewable energy remains, for the large part, reliant on subsidies and unable to compete with fossil fuels on the open market.

5. UK’s energy security will increase – far from increasing, the UK’s energy future looks more uncertain than ever, with talk of blackouts now commonplace in the media. The renewables target is exacerbating the coming energy crunch. Given the intermittent and unpredictable nature of many renewable sources close to 50% of the UK’s generation capacity will need to be from renewables. The only real option is offshore wind. However, given the size of fields needed they will need to continually move into deeper, rougher water. The available data suggest a clear correlation between deeper water and higher costs.

Therefore, while the likely removal of the renewables and other binding targets from 2020 to 2030 is welcome, we believe it will not be sufficient. In particular we highlight that the current policies are having a significant impact on bills. Open Europe estimates that, in 2013, the average household’s dual gas and electricity bill was increased by £59 (5%) due to EU regulations or UK implementation of EU defined targets. By 2020, EU-related regulations or targets will increase annual household bills by £149 (11%).

The impact on medium sized businesses is particularly troubling as shown in the graph below. Open Europe estimates that in 2013 the average medium sized business bill was increased by 9% (£130,000) due to EU regulations or UK implementation of EU defined targets. By 2020, EU-related regulations or targets will increase medium sized firms’ bills by 23% (£350,000). With these figures there are some caveats: DECC claims that there are sufficient offsetting policies which will reduce these costs, however, it’s not clear why these cannot exit in any case (i.e. why bills could not be even lower on net) and that even if these policies were changed, the costs may not evaporate entirely.

Lastly, in terms of the overall picture these policies have proven to be costly but with limited benefit, while many countries, including the UK, look off track. Therefore, we recommend an urgent reassessment of the current policy along with the 2030 framework. After all, if there is a move away from a binding renewables target after 2020, logically it seems strange for governments and businesses in the UK to make huge investments just to meet the current target which will soon be obsolete.

A crucial part of EU reform will creating more flexible policies which can adjust to changing circumstance, which involve continuous, rigorous economic assessment and where mistakes can be undone. This seems as good a place to start as any.

The German economy is showing clear signs of weakening. GDP declined by 0.2 per cent in the second quarter of 2014 and German business sentiment fell for a fifth straight month in September to its lowest level in 17 months. Manufacturing orders dropped during August to the lowest level since May 2013.

Germany’s problems will remain and get worse.

Much of the resilience of the German economy during the last years can be attributed to harsh labour market and social security reforms. These were introduced by the Social Democrat Chancellor Gerhard Schroder (1998-2005) in 2003 with his ‘Agenda 2010’.

The new centre-right / centre-left coalition led by Chancellor Angela Merkel has rolled back many of these reforms by reintroducing early retirement, granting extra pensions for mothers and installing an unprecedented legal minimum wage - of 8.50 euros per hour - in all sectors and all regions of Germany.

The German government has been forced to admit that the minimum wage will increase labour costs by 10 billion euros. It is still unclear how many jobs will be lost after its introduction in 2015.

The new pension benefits will cost around 200 billion euros until 2030. Early retirement could take up to 250,000 elderly off the job market over the coming years when skilled and experienced labour is becoming increasingly scarce and valuable.

Demographic decline will be Germany’s greatest challenge in the long run: coming decades could see Germany’s workforce shrink by about 200,000 every year. The old age dependency ratio - between those older than 65 and those of working age - could increase from 31 per cent in 2013 to 57 per cent in 2045.

Immigration to boost the workforce would be essential. Experts calculate that net-migration of around 400,000 people a year - preferably young and educated - would be needed to avoid demographic decline.

So where should Germany’s future economic growth, desperately needed to pay for pensions and somehow to rescue the eurozone, come from?

The answer is from productivity and innovation, in short: smart investment. Labour participation rates, labour productivity and entrepreneurial ingenuity would have to increase dramatically.

However, Germany’s productivity growth is lagging behind almost all other economies in the world.

The established German Mittelstand - its economic backbone of small and medium-sized enterprises - and some big exporting firms, are still good at innovation. However, Germany holds a dismal 111th place in the World Bank’s ranking for ‘ease of starting a business’ and its service sector is under-developed and over-regulated, while Germany’s education system fails to produce enough matching skills.

Germany’s capital stock is depreciating faster than new investments are replacing it. A declining capital stock combined with a declining workforce, leaves no hope for a growing economy.

That does not mean Germany’s government must add more public debt to the mix.

Many observers are demanding that the government abandons its ‘austerity obsession’ and take advantage of the historically low interest rates for more debt-financed ‘stimulus’.

But the Merkel government is still in the position to do the right thing and increase investment without abandoning the new constitutional balanced budget rule. German politics should also provide better regulatory and tax environments for private domestic investment and lower barriers to entry for its service sector.

Domestic industrial investment is also increasingly discouraged by the ‘lonely revolution’ to wean Germany off both fossil and nuclear energy.

This policy may cost consumers, taxpayers and business up to one trillion euros over the next two decades, according to Peter Altmaier, the former minister for the environment, who is now chief of the Chancellery and minister for special affairs.

German energy costs are now more than double those in the US, while Germany’s greenhouse emissions have increased.

German entrepreneurs and foreign investors have always had these negative factors on their radar.

Germany’s problem is not austerity, but demography and complacency. The message is you cannot bank on Germany.

Wednesday, October 22, 2014

Back in May, we pointed out the so-called 'Farage Paradox' - even as the party came first in the European elections in the UK and Farage himself was widely seen as having bested Nick Clegg in their TV debates, support for leaving the EU had fallen to its lowest level for a long time according to Ipsos-MORI with 37% in favour of Brexit and 54% in support of staying in.

A few months later and UKIP is still riding high in the polls with a victory in the Clacton by-election under its belt and with the Tories on the run in Rochester and Strood - amid all kinds of noise around EU migration. However, on the wider EU question, support for membership has climbed even higher - today's Ipsos-MORI poll has support for membership at 56% - its highest since 1991!! - with support for leaving on 36%.

It's not entirely easy to nail down the drivers behind the trend - even the UK's public defeat over the appointment of Jean-Claude Juncker as European Commission President hasn't reversed it but one possibility could be that as the prospect of exit becomes more real, especially in the wake of the Scottish referendum, people are more likely to go with the 'better the devil you know' option. Another explanation is that Farage is good at stirring up support in concentrated parts of the country, but his divisive rhetoric turns others off. A feel-good factor over the economy (through as we've argued before, this can cut both ways) combined with increased uncertainty around the world - making the status quo look safer and club membership more attractive - could be other reasons.

Either way, it shows that even as UKIP find a way of tapping into disenchantment with the EU and mainstream UK politics, they are failing to convince people that they have the right remedies and this risks derailing the broader 'out campaign, as the pro-Bexit Tory MP Michael Fabricant has warned:

"The out team will be very different, with no leader who commands popular support. Before you can even make the case for Britain becoming a mid-Atlantic economic hub, freed from the shackles of Brussels diktats, the Eurosceptics will be all over the place. No clear leader, and angry looking grey men who have been arguing the toss on Europe for years, will fail to impress. Yes, Nigel Farage is clearly the most charismatic Eurosceptic in years, but does anyone really imagine Farage being the Alex Salmond of the out campaign? Would he be persuasive enough to seduce a nation?"

However, it is worth bearing in mind that other polls have slightly different outcomes. Today's YouGov poll for the Times' red box showed lower levels of support for EU membership - support for membership is roughly the same under their 'major changes' scenario as under Ipsos-Mori's status quo scenario (YouGov's status quo option assumes renegotiation was attempted but failed to secure even modest changes, so can't be directly compared with the Ipsos-MORI one).

This shows that even if some polls suggest a majority of Brits would vote to stay in no matter what, EU reform and renegotiation remains by far the best option for any UK government.

As has been noted before, that's why some Better Off Outers are now starting to fear that long sought after In/Out referendum - in itself an ironic development.

Monday, October 20, 2014

We reported only a few days ago that UKIP's EFDD group in the European Parliament collapsed after a Latvian MEP resigned, meaning the group no longer met the criteria of having MEPs from at least seven different EU member states. The news drew a lot of media attention (not to mention schadenfreude) mainly due to the financial implications for UKIP - which, according to our estimates, stood to lose nearly €2 million a year in EU funding.

Today, it was announced that Robert Iwaszkiewicz, an MEP with Janusz Korwin-Mikke's KNP (pictured) has joined the group. Korwin-Mikke himself was deemed too toxic to join the UKIP group after the European elections given his controversial views on rape (women always "pretend to resist") and the Holocaust (no evidence Hitler knew about it), and that was before he provoked a full-blown race row. Iwaszkiewicz himself is hardly baggage free; during an interview about with Gazeta Wrocławska a couple of months ago, when asked about domestic violence, he said that:

"I'm convinced that many a wife would benefit from such a response in order to re-connect with reality."

When asked about his Korwin-Mikke's views as described above, he said that "these are taken out of context... when considered broadly, they make sense". In any event, this does not appear to be a principled defection - but rather a classic Brussels-style dirty deal. Polish daily Rzeczpospolita reports that Korwin-Mikke and Farage struck an agreement which would see Iwaszkiewicz's transfer mirrored by an MEP from the EFDD move to the 'far-right' bloc led by France's Marine Le Pen, which also includes Geert Wilders's PVV, the Austrian Freedom Party and Lega Nord, and fell one nationality short of forming an official group during the summer. The paper describes this a "binding transaction" and quotes Iwaszkiewicz as saying that:

"Negotiations are on-going. It was necessary to save them and I had to join urgently".

It remains unclear therefore whether an MEP from the EFDD will definitely join the Le Pen group - but that seems to be the implication. Because of the way the nationalities are represented over the two groups, it would either have to be one of UKIP's 24 MEPs or one of the two Sweden Democrats.

If the former, UKIP and Nigel Farage will face some uncomfortable questions given the extent to which they have tried to distance themselves from the Front National. Regardless, this incident just underscores the absurdity of these taxpayer subsides for European Parliament groups.

Outgoing European Commission President José Manuel Barroso is in London, and he has made a few interesting remarks about the Tories, Brexit, EU free movement and Grant Shapps. Wading into the most intense debate on EU migration in the UK since 1066, he has really hit the headlines. However, Barroso no longer has any real say over decisions in the EU - it's Juncker's show now, and he has made addressing the UK's concerns a key priority, although it remains very much an open game. Also, remember, the bulk of Cameron's renegotiation won't be with the Commission - it'll primarily be with member states (though having the Commission on-side will certainly help). In any case, Barroso told the BBC's Andrew Marr Show yesterday:

"So far the British government has not presented a proposal, a concrete proposal [on reform of EU free movement rules]. There are ideas floating, there are rumours. I cannot comment on specific
suggestions that have not yet been presented. What I can tell you is that any kind of arbitrary cap seems to me to be not in conformity with the European rules."

Barroso is of course right - restricting the number of EU workers coming to the UK, via quotas, would be illegal under EU rules - as we argued in our recent flash analysis and most people agree on. The question is whether changes to these rules are possible - this is a big discussion which we've looked at here. However, Barroso also tried to strike a more conciliatory tone when he stressed that there are "widespread concerns in the UK and elsewhere about abuse of free movement rights" and further changes could be made to address them, although "changes to [EU migrants' access to benefits] need all countries to agree."

Barroso had some less well-targetted comments, claiming for example, that the UK would be "irrelevant" and "have zero influence" outside the EU, while also appearing to link EU membership to Cameron's ability to fight the Ebola virus.

At an event this morning, Barroso was also asked about remarks made by Conservative Party Chairman Grant Shapps, who was sent out yesterday to dismiss Barroso's comments, calling the outgoing European Commission President “an unelected bureaucrat”.
Barroso - now clearly free to let his hair down - went all in:

“Since I was 29 years old, I was elected in my country…I don’t know who this gentleman is, but certainly he has not more democratic legitimacy than I have.”

Which begs the question, if Barroso doesn't know who Shapps is, how can he comment on the man's electoral record? Anyway, it allowed the Tories to play the 'we stand up to Brussels card'.

We’ve discussed the economic and political challenges which the sanctions on Russia have caused for the EU. So far the economic pain has been managed (though Germany has been hit quite hard), despite outbursts from a few countries. The long standing political differences over how to deal with Russia have also been exposed.

While the details of the challenges have not yet been revealed in full (the cases can be found here, here and here), Rosneft will be challenging the grounds for banning them and others from capital markets access, while Rotenberg will be questioning the decision to freeze his assets in Europe and impose a travel ban.

So, why exactly might this be a problem?

Well, the EU does not actually have a great track record of being able to legally enforce its sanctions despite the assumption that the ECJ would always back the EU. There are numerous recent examples:

In September this year the EU General Court (a step below the full ECJ) ruled that the EU’s sanctions which froze Iran’s Central Bank assets were unlawful since the evidence behind them was so “vague and lacking in detail”.

Similarly towards the end of 2013 there were a series of cases which saw the sanctions against numerous Iranian banks and companies overturned due to lack of sufficient evidence.

In fact, there have been countless examples of this over the past few years since the ruling in the Kadi case, which essentially established the ability for sanctions to be challenged and precedent for them to be overturned on insufficient evidence.

The thrust is that the ECJ and EU system for legally enforcing sanctions is actually quite inadequate for a number of reasons:

The decision to impose sanctions is essentially a political one. This means the evidence or research which goes into deciding who is sanctioned can often be limited. This makes justifying the sanctions in legal terms quite difficult.

Where there is evidence it can often be confidential and provided by national government sources. However, there is no system for sharing, submitting or even holding confidential information at the ECJ. All evidence submitted to the court must be shared with the other side and is often made public. This makes many governments and intelligent services very uncomfortable. This combined with the point above means that in some cases the court is forced to overturn sanctions simply because it has not been given enough evidence to make a proper judgement.

Those being sanctioned are often not the real target. The Russian sanctions are a prime example of this – individuals and firms around the Russian government have been hit to try and inflict pain and force a change of approach by the government. But this means that to legally defend the sanctions the link between the two must be conclusively proven and they must be shown to be involved in the activity which resulted in the sanctions.

(For a more detailed discussion we recommend reading this evidence submitted to the House of Lords on the isse).

It has taken a while for this to filter through. The main reason is that the original sanctions, which were focused on those involved in destabilising Eastern Ukraine and Crimea were easier to defend and legally prove. However, as sanctions have broadened and the objective has become causing general economic pain, the legal base has also become more stretched. Clearly, Rosneft and Rotenberg feel they are now at a point of vulnerability.

It’s hard to fully assess at this point in time just what chances they have of succeeding. The hope might be that the cases will draw attention and encourage those EU countries which do not fully support sanctions to apply more political pressure for an easing of the controls. Just today we have seen Hungary speaking out against them.

Even if Rosneft and Rotenberg were to win, history has shown that this is no guarantee of the sanctions being removed permanently. Previously, the sanctions have simply been reworded and instituted under a different legal base. Sure they can be challenged again but it is a very lengthy legal process. Alternatively, better evidence has been collected in due course and a more solid base for the sanctions provided. Of course, the EU would retain the right to appeal against any judgement.

With that in mind we wouldn’t expect any results for 12 – 18 months and in the meantime the sanctions will stay fully in place. In that sense, given the economic and political fallout from the sanctions so far not to mention the increasingly desperate economic crisis in Ukraine, many will hope the situation has reached some resolution before these cases ever have a chance to be resolved.

The Bill will now go to Committee stage where the best strategy for those who wish to scupper it (without been seen to be overtly doing so) will be to amend the bill in order to prevent it from being 'parliament acted' - something which will happen automatically if the Bill is rejected outright or is still stuck in the Lords by the time parliament is dissolved for the general election. Since the unsuccessful Bill has to be exactly the same on both occasions, if Labour and Lib Dem MPs manage to - for example - extend the franchise to 16 and 17 year olds as happened in the Scottish referendum, the Parliament Act could not be used. The exact make-up of the committee (will any pro-referendum Labour MPs be included?) could prove crucial.

Another problem is that unlike James Wharton - who topped the Private Members' Bill ballot last time around - Bob Neill only came third, so his Bill is behind the two other PMBs in the parliamentary pecking order. Both are relatively contentious themselves - one seeks to fundamentally reform the so-called 'bedroom tax' and the other aims to enshrine the government's to spend 0.7% of GDP in foreign aid - so the more time they spend in Committee stage, the longer it will take for Neill's Bill to progress to that stage.

If however it does navigate its way through the Commons unamended, then it will be for the next UK Government to either hold the referendum as instructed, ignore the law or seek to reverse the legislation. Either way, it will have served its primary purpose - convincing a sceptical electorate that the Conservatives are serious about a referendum.

The European Banking Authority (EBA) on Wednesday released the results of its investigation into whether banks across Europe have been using ‘allowances’ to skirt the EU’s bankers’ bonus cap. This is obviously a hugely contentious issue in the UK and the fact that UK banks have been taking this approach has been well publicised and oft criticised by EU politicians. But it’s interesting to note that the EBA found 39 banks across six EU states had been using such allowances, so clearly it is an issue which extends beyond the UK’s big banks.

Nevertheless, the opinion does not bode well for the UK with the EBA concluding:

“The EBA found that in most cases institutions had topped up the fixed remuneration of their staff and had introduced discretionary ‘role based' allowances which have an impact on the limit of the ratio between variable and fixed remuneration required by the EU Capital Requirements Directive (CRD IV).”

“The report showed that most of the allowances, which were the subject of the EBA investigation, did not fulfil the conditions for being classified as fixed remuneration, namely with respect to their discretionary nature, which allows institutions to adjust or withdraw them unilaterally, without any justification.”

The report is much as expected, with the EBA making the case that the allowances are not permanent pay for a number of reasons: they are revocable with little notice, specific to the staff member not the role, often have forfeit clauses therefore not permanent and are often linked to proxies for the firms performance (such as the economic environment).

The last point in particular clearly chimes with concerns from banks that they will have less control over their costs at times of economic hardship. This is exacerbated by the point (number 37 in the report) below which is frankly just a bit strange:

"Some role-based allowances might only have been introduced to comply with the bonus cap introduced by the CRD IV while retaining some cost flexibility. Cost flexibility is of importance where the performance of the institution or a business unit is no longer considered adequate."

Surely, cost flexibility is always relevant for a business, particularly one in a very competitive environment, and not just when it is failing? We’re not quite sure what the EBA is getting at there.

What happens now?

The opinion isn’t binding, although the EBA has said it expects national regulators to make sure that all banks are in compliance by the end of the year, however, it has no legal way to enforce this (yet).

The EBA is currently reviewing its guidelines on the issue and will hold a public consultation before the end of the year with the new official rules being published in the first half of 2015 (at this point they will be legally binding).

In particular, if banks want to continue using allowances they will have to be “predetermined, transparent to staff and permanent”.

Ultimately, this throws a bit more uncertainty in the mix with banks uncertain over exactly how and when to adjust their allowances.

What does this mean for the UK?

Clearly, this is a bit of a blow for the UK. That said, the issue has already to an extent moved out of the EBA’s hands. The UK is challenging the original proposal at the European Court of Justice. Even if this proposal fails it could challenge the updated guidelines/rules which are used to implement the cap. Banks themselves could of course choose to launch legal challenges although this looks unlikely at this stage.

Banks will ultimately find a way to pay their staff the market rate. This will likely end up being in the form of higher base salaries, something which will make banks less flexible and push up their average costs. This could potentially harm competitiveness and possibly force banks to pass on such costs to consumers.

The biggest concern is a broader one of precedent and where laws are really made. The bonus cap was a specific law tagged onto a much larger piece of legislation to which it is largely unrelated. This significantly aided its passage through and watered down scrutiny. Then given the technical nature of the rules a lot of the holes were filled in by the Commission and the EBA in setting the exact parameters for implementation – providing a lot of power to the two institutions. The temptation to take such an approach with complex financial regulation is obvious and circumvents the little accountability and control which member states have.

This debate surely has some way to run yet but this looks to be one battle which so far the UK is losing.

Thursday, October 16, 2014

Following reports that David Cameron is considering a new announcement on how he would renegotiate EU free movement, potentially considering an "emergency brake", we have set out in a short briefing what his potential options are.

Here are the key points:

The debate about internal EU migration has two dimensions. Though inter-linked they should be treated separately. “Fairness” – who can access what benefits and when; and “volume” – how many migrants come to the UK every year. David Cameron is reportedly considering moving from addressing fairness to making a demand to curb the numbers of EU migrants to the UK.

There is substantial support at the EU level to give national governments greater control over access to their welfare systems and doing so would not require treaty changes but a qualified majority vote among governments and the agreement of the European Parliament.

Any move to limit the numbers of EU migrants coming to the UK would most likely require treaty change (with the possible exception of an ‘emergency brake’) and therefore the unanimous agreement of other EU governments. It is currently unclear what exactly – if anything – Cameron might ask for on volume, but he may have three broad options, which in order of increasing difficulty to secure EU agreement are:

An ‘emergency brake’ triggering temporary controls on EU migration if the flow is considered ‘destabilising’, too large and/or concentrated;

Permanent quotas on EU migrants;

A points-based system, similar to that which exists for migrants from outside the EU, differentiating between “skilled” and “low-skilled” migrants.

There are a number of questions around how an ‘emergency brake’ could be organised practically, but if this is David Cameron’s top EU negotiating priority he may just achieve it, given that there are precedents for brakes in other areas in the EU treaties and there is increasing awareness across the Continent that public concern about free movement is contributing to the EU’s unpopularity.

Whatever the merits of the proposal, as a domestic political strategy, it is unclear whether an ‘emergency brake’ would be enough to see off UKIP – as Cameron could still be accused of failing to secure full control over Britain’s borders and migration policy – although it may reassure 'swing voters'. Therefore, Cameron risks spending a lot of political capital abroad for limited political return at home.

Securing either option 2 or 3 would be an extremely difficult task as it would involve fundamentally rewriting the EU treaties and unpicking one of the founding principles of EU membership. There is likely to be little or no political appetite for such a move among other EU countries. The Swiss experience shows that, even outside the EU, measures to limit EU migration could result in threats from Brussels of reduced trade access to EU markets.

This is not to say that EU rules on free movement can ever be changed, but rather that this is one area where Number 10 will find it hard to get away with creating the headline first, and the content later. Given the domestic sensitivity of the issue and how deeply it strikes at the heart of existing terms of EU membership, successfully negotiating change requires a well thought out plan that has domestic and European level buy-in.

Update 17:00:
The Spectator Coffee House blog is reporting the Conservative Chief Whip may be preparing MPs for a decision to stay out of the EAW. However the line from Number 10 is that they are still
"in principle seeking to opt back in."
********
Before 1 December, MPs will vote on whether to accept the Coalition's decision to opt back in to around 35 EU Crime and Policing laws and, for the first time, accept the jurisdiction of the European Court of Justice - or stay out completely. As we have written before, the choice is a straight one between "more or less EU control over UK crime and policing."

But this flagship Coalition EU policy may fly in the face of another - the European Union (Referendum) Act 2011 - which was supposed to give the British people the final say on the transfer of powers to the EU. So why are we not going to see a referendum? Well as this decision was already in the pipeline, it was excluded when the Government drafted its legislation. However, other areas such as participation in the European Public Prosecutor would definitely require a referendum.

This division will now be tested in the Courts courtesy of a judicial review by Jacob Rees-Mogg MP and UKIP treasurer Stuart Wheeler who believe that not only does the decision to opt-in to the European Arrest Warrant require a referendum, but the EAW also contravenes Magna Carta and Habeas Corpus. [It is worth remembering that Rees-Mogg's father and Stuart Wheeler have both previously brought legal actions against ceding of power to the EU]. As a legal opinion, commissioned by the Freedom Association, points out there are a number of serious problems including:

“With regard to the question of whether the UK’s opt-out
from the jurisdiction of the European Public Prosecutor’s Office (EPPO) will be
rendered ineffective owing to the ability of the EPPO to initiate the issue of
an EAW and secure its execution in the UK, it is quite clear that it would."

It's unlikely that the Courts will side with the appeal, but in any case, it'll be interesting to follow what it has to say about it.